IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KAREN J. WALSH :

:

: CIVIL ACTION

Plaintiff, :

 :

 :

IRVIN STERN'S COSTUMES, et al : NO. 05-2515

:

:

Defendants :

MEMORANDUM

Baylson, J. February 14, 2006

I. Introduction

On January 19, 2006, this Court issued a Memorandum and Order (Doc. No. 18) granting in

part and denying in part Defendants’ Motion to Dismiss. Walsh v. Irvin Stern's Costumes, 2006

WL 166509 (E.D. Pa. Jan. 19, 2006). Presently before the Court is a Motion for Reconsideration of

that decision, filed by Plaintiff Karen Walsh (“Plaintiff” or “Walsh”) on January 29, 2006 (Doc. No.

19). On February 7, 2006 (Doc. No. 20), Defendants filed a response brief.

The procedural history of this case, and the factual allegations and legal claims set forth in

the complaint are described in detail in the January 19th Order.

II. Legal Standard

When deciding a motion for reconsideration, a court may alter or amend a judgment “if the

party seeking reconsideration shows at least one of the following grounds: (1) an intervening change

in the controlling law; (2) the availability of new evidence that was not available when the court

granted the motion . . . ; or (3) the need to correct a clear error of law or fact or to prevent manifest

injustice.” Max's Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 676 (3d Cir.

Case 2:05-cv-02515-MMB Document 21 Filed 02/15/06 Page 1 of 5
2

1999). 

Reconsideration is an extraordinary remedy, made available to correct manifest errors of law

or fact, or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d

Cir. 1985). Mere dissatisfaction with the Court’s ruling is not the basis for such a reconsideration,

nor can such a motion be used as a means to put forth additional arguments which could have been

made but which the party neglected to make. Waye v. First Citizen’s National Bank, 846 F. Supp.

310, 314 (M.D. Pa.), aff’d, 31 F.3d 1175 (3d Cir. 1994). 

III. Discussion

In its January 19th Order, this Court dismissed Count Three of Plaintiff’s Amended

Complaint, which had alleged violations under the Equal Rights Amendment to the Pennsylvania

Constitution, Art. 1, § 28 (“PERA”). In its accompanying memorandum, however, we noted that “if

there is a definitive appellate ruling [conferring a private right of action under PERA] by a

Pennsylvania court or by the Third Circuit during the pendency of this litigation, this Court will be

open to reinstating Plaintiff’s PERA claims.” Walsh, 2006 WL 166509 at *8.

In her Motion for Reconsideration, Plaintiff cites to the October, 2005 case Weaver v.

Harpster & Shipman Financial Services, 884 A.2d 1073 (Pa. Super. 2005), which Plaintiff argues

expressly conferred a private right of action under PERA. (Pl.’s Memo at 2). Defendants counter

there is no valid basis for reconsideration because Weaver is readily distinguishable from the

circumstances of this case and further does not constitute the “definitive appellate ruling” specified

in the January 19th order as grounds for reinstatement of Plaintiff’s PERA claim. (Def’s Response

at 1-2). The Court agrees with Defendants.

The specific question before the Weaver court was whether Pennsylvania recognizes a

Case 2:05-cv-02515-MMB Document 21 Filed 02/15/06 Page 2 of 5
3

common law cause of action for wrongful discharge where an employee is prevented from bringing

suit under the Pennsylvania Human Relations Act (“PHRA”) because his or her employer does not

meet the definitional standard of “employer” under the Act. Weaver, 884 A.2d at 1074. In that

case, the Plaintiff filed a claim alleging sexual harassment with the Pennsylvania Human Relations

Commission (“PHRC”), which was dismissed because her employer had less than four employees,

and thus was not subject to the PHRA. Following the PHRC’s rejection of her claim, she

commenced a lawsuit in the Court of Common Pleas, alleging sexual harassment, discrimination,

harassment and constructive discharge in violation of the PHRA, as well as wrongful discharge,

assault and battery, invasion of privacy, and loss of consortium. Id. The employer’s preliminary

objections were granted and all claims except assault and battery were dismissed. Those two claims

proceeded to trial, but resulted in a defense verdict. Id. Plaintiff appealed the ordering dismissing

the other counts. 

Citing to both the PERA and the PHRA as sources of public policy prohibiting gender

discrimination and harassment, the Superior Court vacated the lower court’s order dismissing the

wrongful discharge claim, remanding it to allow Plaintiff to go forward with that charge. Id. at

1078. However, in carving out this public policy exception to the at-will employment doctrine, the

Court explicitly limited its holding to situations where, because his or her employer does not meet

the definition of “employer” under the PHRA, the Plaintiff would otherwise be completely

foreclosed from bringing a sex discrimination case. Id. Specifically, the court stated:

It is difficult to believe that the Legislature would first define certain acts

as illegal via both the Constitution and statute . . . and then remove all

judicial recourse for the victims of that conduct. We therefore agree with

[Plaintiff’s] contention that a public policy exception is appropriate for her

situation.

Case 2:05-cv-02515-MMB Document 21 Filed 02/15/06 Page 3 of 5
4

Id. at 1077 (emphasis added). It then went on to declare that:

[W]here an employee is prevented from bringing a sexual discrimination

suit under the PHRA only because his or her employer has less than four

employees, we find a public policy exception to the at-will employment

doctrine. 

Id. at 1078. In so doing, the Superior Court explicitly and clearly emphasized the limited nature of

its holding.

First, we agree with Defendants that it is disingenuous for the Plaintiff to imply that the

Weaver decision broadly and “expressly” “stated . . . that a private right of action exists under Art.

1, § 28 of the Pennsylvania Constitution” (Pl.’s Memo at 2), when, as discussed above, the

Superior Court clearly limited its holding to the specific factual circumstances of the case. 

Further, as Defendants point out, Weaver is readily distinguishable from the circumstances

presented in Walsh’s case. Walsh has judicial recourse under the PHRA, and has also pursued

Title VII claims that survived Defendants’ Motion to Dismiss. Thus, Weaver is of no assistance to

her, because unlike the plaintiff in that case, Walsh is not foreclosed from pursuing her gender

discrimination case against her former employer in court. Further, as an appeal is currently

pending with the Pennsylvania Supreme Court in the Weaver case, docketed as case number 68

MAL 2006, the Superior Court’s decision is not the “definitive appellate ruling” that was

contemplated in this Court’s January 19th order. In sum, there is no valid basis for

reconsideration.

IV. Conclusion

For the foregoing reasons, Plaintiff’s Motion for Reconsideration will be denied. An

appropriate Order follows.

O:\CIVIL\05-2515 Walsh v. Irvin Sterns Custumes\05-2515 Walsh v. Irvin Sterns Costumes, M to Reconsider MTD 2006.02.14.wpd

Case 2:05-cv-02515-MMB Document 21 Filed 02/15/06 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KAREN J. WALSH :

:

: CIVIL ACTION

Plaintiff, :

 :

 :

IRVIN STERN'S COSTUMES, et al : NO. 05-2515

:

:

Defendants :

ORDER

AND NOW this day of February, 2006 upon consideration of Plaintiff’s Motion for

Reconsideration (Docket No. 19), and the response thereto, it is ORDERED that the motion is

DENIED. 

BY THE COURT:

/s/ Michael M. Baylson

 

Michael M. Baylson, U.S.D.J.

Case 2:05-cv-02515-MMB Document 21 Filed 02/15/06 Page 5 of 5